CHANDRADIPATHIYALAGE NILANTHA INDIKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1354/2019

[2022] HKCFI 721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1354 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

1.  leave to apply for Judicial Review granted;

2.  costs be in the cause; and

3.  the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

1.   The Applicant is a 40-year-old national of Sri Lanka who entered Hong Kong illegally sometime in 2007 and was arrested by police on 12 December 2007 for robbery for which he was convicted and sentenced to 44 months in prison. Upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised a torture claim which he subsequently withdrew, and later sought non-refoulement protection under the remaining applicable grounds on the basis that if he returned to Sri Lanka he would be harmed or killed by members of the political party Sri Lanka Freedom Party (“SLFP”) as he supported their rival United National Party (“UNP”). He was subsequently released on recognizance pending the determination of his claim.

Background Facts

2.   The Applicant was born and raised as a Catholic in Dankotuwa, District Kurunegala, Sri Lanka. After leaving school he worked as a production worker in tableware, and followed his family’s tradition to support UNP and eventually became the assistant of a senior party member who was also the parliamentary minister of the Puttalan District.

3.   One day in late 2004 while he together with his fellow UNP members were assisting in the election campaign of his party’s candidate against the SLFP’s candidate in the presidential election, they were attacked by a group of SLFP supporters armed with hockey sticks and iron bars that the Applicant and some of his UNP people suffered cuts and bruises all over their body that they were taken to the local hospital for medical treatments.

4.  On another occasion several months later in mid-2005, while he was on a motorcycle on the way home, the Applicant was attacked by a group of SLFP supporters who threw stones at him which struck his back that he later had to seek medical treatment in a clinic.

5.  Several months thereafter during a meeting between representatives of UNP and SLFP in which the Applicant also participated, a heated argument broke out during which the Applicant was attacked by one of the SLFP members, and later on the same night he received a phone call from some SLFP people who threatened to kill him.

6.  As he was unable to get any useful assistance from the police, but the death threats against him had persisted, the Applicant became fearful for his safety and fled from his home to take shelter in various places of his friends before moving on to his aunt’s place in Kandy.  

7.  However, when some unknown men later came to his aunt’s place looking for him, the Applicant felt it was no longer safe to remain in Sri Lanka, and so in August 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest and discharge from prison for robbery, he raised his non-refoulement claim for protection, for which he completed a Torture Claim Form (“TCF”) on 21 October 2013 and a Supplementary Claim Form (“SCF”) on 23 October 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interviews before an immigration officer due to alleged medical or health reasons.

8.  Meanwhile the Applicant married a local resident in Hong Kong, and raised a family with two small children, a son then at 2 years old in 2017, and a daughter one year younger.

Director’s Decision      

9.  By a Notice of Decision dated 28 December 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

10.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those SLFP members upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from his home district in large cities such as Colombo where it would be difficult if not impossible for those SLFP people to locate him.

Appeal Board’s Decision

11.  On 8 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 6 December 2018, and upon receiving an explanation sent from his pastor on his behalf that he was then not of sound mind and sense to attend the scheduled hearing due to serious family matters, and for which he requested another oral hearing for his appeal, the Board refused to do so and proceeded to deal with his appeal in his absence and on paper, and on 20 February 2019 the Board dismissed his appeal and confirmed the Director’s decision.

12.  In its decision the Board refused to accept the Applicant’s explanation for his failure to attend the scheduled oral hearing due to psychological condition in the absence of any supporting medical or psychological report as being insufficient to order a fresh hearing, that there were however issues of credibility over his claim which the Board could not accept on the papers without reservation, that it was in any event for the Applicant to appear at his scheduled hearing to prove his case to the required standard, and when he failed to do so at the scheduled hearing, there was therefore no evidence to support what he had written in his TCF and SCF, and hence the Board was unable to decide whether he would face any of the risks claimed if he were refouled to Sri Lanka or to decide whether he would be entitled to non-refoulement protection that his claims must be dismissed on all the applicable grounds.

Application for Judicial Review          

13.  On 20 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds as amended for his intended challenge upon being granted Legal Aid for his application:

(1) Procedural unfairness in that the Adjudicator acted in a procedurally unfair and/or irrational manner by failing to consider the appeal on the papers;

(2) Procedural unfairness/error in law in that the Adjudicator erred in law by requiring the Applicant to produce medical evidence to explain his absence at the appeal hearing;

(3) Procedural unfairness/unreasonableness in the Adjudicator’s blanket imposition of the requirement that the Applicant’s request for a rescheduled hearing be supported by medical or psychological evidence without regard for the individual circumstances of the case;

(4) Ultra vires in that the Adjudicator acted ultra vires in requiring the Applicant to submit medical or psychological evidence;

(5) Failure on the part of the Adjudicator to give proper reasons for his decision to dismiss the Applicant’s appeal;

(6) Error of law in the Adjudicator setting an unduly high standard of proof for the Applicant to prove his non-refoulement claim; and

(7) Procedural unfairness/unreasonableness in that the Adjudicator’s assessment of the Applicant’s credibility was procedurally unfair.  

14.  Before considering these complaints of the Applicant, it would be relevant to first set out in full the stated reasons of the Board for refusing to reschedule another hearing for the Applicant’s appeal after he failed to attend the hearing on 6 December 2018 as follows:

“3. Having read the papers in this case I decided that, following the principles set out in ST v Betty Kwan & Ors, CACV 115/2013, an oral hearing was required. This was set down for 6 December 2018 at 2:30 p.m., Notice of hearing was served on the Petitioner on 6 November 2018, as required by section 13 of Schedule 1A to the Immigration Ordinance, by post at his last known address.

4. On 6 December 2018 the Petitioner failed to attend the hearing. I was satisfied that notice of the hearing had been given to the Petitioner following paragraph 11.11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”) that notice had been duly served on the Petitioner, and accordingly decided, subject to the provisions of paragraph 11.14 to hear and determine the Appeal in his absence.

5. In addition to being served with the notice of hearing the Petitioner had been telephoned on 5 December 2018 by staff of the Board and reminded to attend.

6. On 6 December 2018 the Petitioner was given written notice of my intention to determine the appeal in his absence and stating that he might submit to the Board, within 7 days, a written explanation of his failure to attend the hearing together with any documentary evidence supporting the explanation. Again this was sent by post to his last known address.

7. On 11 December 2018 the Board received a letter dated 10 December 2018 from the reverend Margaret Mathieson, an Associate Pastor at the Kowloon Union Church. The salient parts read as follows:

“I am writing to confirm that Mr CHANDRADPATHITALAGE, who is an active member in our church refugee and asylum seeking fellowship, was not in an appropriate condition to attend the Hearing scheduled on 6 December 2018.

Mr CHANDRADPATHITALAGE was experiencing many life challenges in the last few weeks due to serious family issues, these challenges caused Mr CHANDRADPATHITALAGE to suffer serious lapses in his memory and emotional state. Pressures arose because of additional expenses for his son’s education in addition to this he and his family recently had to locate a new place to live due to the environment not being suitable for his children. His daughter recently spent 2 weeks in hospital due to pneumonia. His wife has been in need of medical attention also. Mr CHANDRADPATHITALAGE has spent the last two weeks reaching out to different churches and NGO’s to gather financial support to cover these unexpected expenses that have arisen.

Facing all that was before him Mr CHANDRADPATHITALAGE knew in himself that he was not of sound mind and sense to attend the hearing, not one but all of these above mentioned factors contributed to his postponement of this crucial appointment.

Mr CHANDRADPATHITALAGE has been a very responsible member in our community, he is always punctual and reliable. I am convinced that he would never have missed the Hearing if he had not been experiencing all these sudden and unforeseeable events in such a short period of time. I hope the Board would consider his situation and accept his explanation of missing this Important Hearing, and give him another opportunity to attend the Hearing.”

8. Unfortunately, although the explanation put forward on the petitioner’s behalf appeared to rely on his psychological condition as perceived by the Revd. Mathieson, no medical or psychological report was made available. The Petitioner was later contacted by telephone by the Board’s staff and confirmed that he did not have any medical report and could not obtain one.

9. No doubt the petitioner told the Revd. Mathieson that he had met with the difficulties she mentions in her letter and that he was stressed and did not feel equal to representing himself at the hearing. She is simply passing that on. She does not claim any medical or psychological expertise which would allow her to say whether or not the Petitioner was fit to attend his hearing.

10. If a person is not fit, for psychological reasons duly certified by a medical practitioner, to go ahead with an oral hearing before this Board, it would obviously be unfair to force him to do so.

11. However this Board cannot be expected to accept a later excuse for non-attendance on the ground that “I did not feel equal to it”, without any medical or psychological support, as being sufficient to order a fresh hearing. That way lies procedural chaos.

12. For the purposes of paragraph 11.15 of the Procedural Guide I am not satisfied with the petitioner’s written explanation. There is no supporting documentary evidence. I will therefore proceed to determine the Petition.”      

15.  After refusing the Applicant’s request for another oral hearing for these reasons, and upon announcing that it was going to determine the appeal in the absence of the Applicant and on papers, and having referred to the decision of Campbell-Moffat J in Ghotiya Nanu Ram and Ors, HCAL 661/2017 [2018] HKCFI 706, of which it stated that it would follow, the Board then set out its approach to dealing with the appeal on the papers:

“16. An appeal to the TCAB/Petition Office is carried out by a reconsideration of the evidence, i.e. a rehearing. The appeal may be disposed of by way of paper review or oral hearing. There is no absolute right to an oral hearing.

17. In the first instance the Adjudicator considers the Petitioner’s case on the papers and forms a view on it.

18. The papers themselves are to some extent like civil pleadings. If a court finds no case on a plaintiff’s pleadings it will allow an application to strike them out and dismiss the claim. If it finds that there is a case, the court will refuse such application and proceed to directions for a hearing so that the facts stated in the pleadings may be proved. If the plaintiff does not attend the hearing to pursue his claim, it will be dismissed for lack of proof.

19. If the Adjudicator finds that, accepting without reservation the petitioner’s case on the facts as stated in the papers, there is still an insufficient basis to find torture risk, BOR 2 risk, BOR 3 risk or persecution risk, he will dispose of the case by way of paper review and dismiss the appeal.

20. If the Adjudicator finds that, on the papers, the Petitioner may have a case on any of the risks claimed, he will order an oral hearing at which the Petitioner will have the opportunity by to make out his case, to the required low standard. That is what the high standard of fairness requires.

21. If the Petitioner fails to attend at the oral hearing after due notice is given, and then fails to give a satisfactory explanation for his failure, again after due notice is given to him, then the Adjudicator may dismiss the appeal on the basis that there is no evidence to support the risks claimed.

22. A formal consideration of the issues, in the form of a fresh consideration of the papers is inappropriate because the Adjudicator has already decided that he cannot accept the facts without reservation. There may in particular be issues of credibility or on the question of internal relocation which can only be resolved by way of an oral hearing.

23. If the issues are not resolved, there can only be one outcome and that is refusal of an appeal. I cannot imagine a situation where the Adjudicator will allow an appeal on a formal consideration of the papers, because in all cases the burden is on the petitioner to make out his case, albeit to a low standard of proof.”     

16.  Upon such stated approach the Board proceeded to consider the Applicant’s case, and found there were issues of credibility of his claim but which the Applicant had failed to prove due to his absence from the oral hearing, and which had further been undermined by his failure to raise his claim as soon as he arrived in Hong Kong or to answer a subsequent questionnaire in his process before the Director, as it elaborated as follows:

“30. There are issues of credibility. Essentially the Petitioner, whose credibility may be regarded as damaged by his own actions omissions, is telling a common but unsupported story of violence and threats made many years ago.

31. It would be necessary to decide whether the Petitioner’s evidence of what happened to him in Sri Lanka is credible and whether there is a current risk to him, many years later, from the persons he blames for what happened to him then. It would also be necessary to decide whether, if there is or may be a current risk, the Petitioner can avoid it by internal relocation and whether it would be unreasonable or too harsh to expect him to do so.

32. I have considered whether, although I find the Petitioner’s explanation for non-attendance unsatisfactory, there are any other factors which would make it unfair not to allow him a rescheduled hearing. I cannot find any.

33. I could not accept the Petitioner’s case on the papers without reservation. In any event it was for the Petitioner to appear at such hearing and prove his case to the required standard.

34. The Petitioner did not appear at the hearing. There is no evidence to support what he has written in his Torture Claim Form and Supplementary Claim Form, and I am unable therefore to decide whether he faces any of the risks claimed. He may have a case on his “pleadings” but he has given no evidence to support them.

35. It follows that I am unable to estimate what risks, if any, he faces if he is refouled to Sri Lanka or to decide whether or not he is entitled to non-refoulement under the provisions mentioned above.

36. All his non-refoulement claims must therefore be dismissed.”  

17.  It is therefore against these findings of the Board and its conclusion that I now proceed to consider the Applicant’s complaints against the decision, perhaps starting more appropriately first with those relating to his failure to attend the scheduled hearing, i.e. Grounds (2), (3) and (4) together.   

Grounds (2), (3) & (4): Erred in law and/or acted unfairly by requiring medical or psychological evidence to explain the Applicant’s absence

18.  Mr Timothy Parker, assigned counsel for the Applicant, submits that the Board erred in requiring the Applicant to submit medical or psychological report as a pre-requisite to re-fixing the hearing after he failed to attend the one on 6 December 2018 in that it was never a condition or prerequisite stated in the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), 4^th edition, 12 September 2016, and that the Adjudicator’s decision was also unfair and irrational, as the Applicant never claimed that he was suffering from a diagnosable medical or psychological condition in that he was under great stress due to ongoing life circumstances that he did not feel fit and well to present his case, which was to the Adjudicator a question of whether it was a reasonable cause for being absent, but instead of considering that question, the Adjudicator wrongly proceeded on the basis of re-fixing the hearing had to be refused because the application was not supported by medical or psychological evidence.

19.  Mr Parker further submits that even in the case of an adjournment where medical evidence is specifically adverted to in the Petition Guide, the Board would still have a wide discretion in the interest of justice and with key consideration of fairness, and in the present case the Adjudicator should have considered whether the reasons given by the Applicant amounted to reasonable cause for an adjournment, and hence it was wrong, irrational and unfair to refuse an adjournment only because no medical or psychological report had been supplied, and that the reasons given by the Adjudicator were either not amenable or not exclusively amenable to proof by medical or psychological evidence.

20.  If an appellant/petitioner fails to appear at the scheduled hearing before the Board, it is stipulated in the Petition Guide that the Adjudicator shall do as follows:

“11.14 If the petitioner fails to appear at the hearing, the Adjudicator may still determine his petition, but before doing so, the Adjudicator must-

(a) give the party written notice of the Adjudicator’s intention to do so; and

(b) state that the party may submit to the Adjudicator, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing, together with any documentary evidence supporting the explanation. [cf. s15(2) of Schedule 1A]

11.15 If the Adjudicator has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified; or is not satisfied with the party’s written explanation or supporting documentary evidence, the Adjudicator may proceed to determine the petition. [cf. s.15(3) of Schedule 1A]

11.16 If the Adjudicator is satisfied on the basis of the party’s written explanation and supporting evidence that the failure to attend was due to a reasonable cause, the Adjudicator may re-fix the hearing of the petition to a new date, time and place. [cf. s.15(4) of Schedule 1A]” 

21.  It is therefore clear that when an appellant/petitioner fails to appear at the hearing, there is no requirement that he must provide documentary evidence for his written explanation for his failure to attend the hearing.

22.  In fact, only if an adjournment is sought by an appellant/petitioner on medical grounds that Section 14.2 of the Petition Guide requires that a medical certificate/report be presented to the Adjudicator as the basis of the adjournment, and even without one, the Board would still be required to consider whether it is in the interests of justice to grant an adjournment ([14.1] of the Petition Guide).

23.  In the present case, as clearly stated in the letter from his pastor, the Applicant’s reason for failing to attend the hearing was due to great stress caused by various family problems, and while the Adjudicator may query whether there were any documentary evidence to corroborate his assertions, and may also be entitled to reject such explanation without corroboration, there was certainly no statutory requirement for the Applicant to submit medical or psychological report, nor any evidential basis for the Adjudicator to conclude that it was for psychological reason that he failed to attend the hearing or for which he was required to submit any medical certificate before considering whether to accede to his request for another hearing.

24.  More importantly, in deciding whether to hold an oral hearing, or for that matter whether to re-fix an oral hearing, the Adjudicator should bear in mind of those matters set out in Section 11.5 of the Petition Guide:

“The Adjudicator would consider all relevant matters before deciding whether to hold an oral hearing. Each case would turn on its own facts, and it is neither desirable nor possible to set out exhaustively what are the relevant considerations. Nevertheless, in most if not all cases, there are matters as mentioned in sub-paragraph (a) to (c) below, which may overlap, which the Adjudicator should bear in mind –

(a) The interest at stake and the potential consequence of the Decision:

(i) What is involved is the fundamental human right of the claimant to be free from torture. That is an absolute human right, which admits of no exception. One is concerned with a fundamental right to be free from torture. The potential consequence of the Decision is grave. Where life and limb are potentially at risk, the high standards of fairness is required in the first place, this must be a weighty consideration favouring the holding of an oral hearing.

(ii) Depending on the facts, it may be appropriate for the Adjudicator to draw the petitioner’s attention to matters that obviously require clarification or elaboration so that they can be addressed by the petitioner. On the other hand, there is no duty to keep on probing or inquiring where the objective circumstances make it reasonably clear that the petitioner and those representing him are aware of what he wanted to show and has already produced or mentioned. The exercise of determining whether a petition is valid is one of joint endeavor. A very practical result of all these requirements based on the high standards of fairness involved is that if any of these requirements cannot be fully satisfied without an oral hearing – and the petitioner should be given the benefit of any doubt, an oral hearing should be held.

(b) The high standards of fairness would require the petitioner to be given an opportunity to be heard either orally or in writing where the Adjudicator considered there is anything in the petitioner’s evidence or submission which is material to the determination of the petition. It is for the Adjudicator, in the exercise of his discretion, to take the most effective and fairest way to approach the concern in question. The following examples are strong pointer towards an oral hearing or (where appropriate) further written representations:

(i) If there is any point, factual or legal, which the Adjudicator is not sure, then an oral hearing or further submissions from the petitioner would help.

(ii) The Adjudicator is of the view that certain factual or legal point which is relevant to the determination has not been dealt with adequately or at all in the petition. An obvious situation is where the Adjudicator is aware of an important authority on a material point which has been omitted or toughed on superficially only in the Notice of Appeal/Petition.

(iii) The material placed before the Adjudicator calls for some further probing, questioning or inquiry. This is particularly so if the absence of such further probing, questioning or inquiry would lead to the Adjudicator drawing an inference adverse to the petitioner.

(iv) Where the issue concerns the drawing of inference, the application of common sense, the giving of weight, or the assessment of risk, that is, matters involving essentially evaluation and judgment, oral arguments may well be a better means of representation than written submissions.

(c) In deciding how to exercise his discretion to order an oral hearing, the Adjudicator should consider whether there is any advantage in holding an oral hearing as opposed to merely deciding the petition on paper (whether based on the original petition documents or based on the petition documents plus further written representations submitted at the request of the Adjudicator). By nature, written submissions do not afford the flexibility of oral presentations. They deprive the petitioner the chance to mould his arguments. Sometimes, an oral hearing is preferable to written representations simply because of the nature of the issues or arguments involved. Some arguments are best to be dealt with orally.”   

25.  In the Board’s decision, the Adjudicator clearly found various issues with the Applicant’s claim that needed to be resolved, as he stated at §31:

“It would be necessary to decide whether the Petitioner’s evidence of what happened to him in Sri Lanka is credible and whether there is current risk to him, many years later, from the persons he blames for what happened to him then. It would also be necessary to decide whether, if there is or may be a current risk, the Petitioner can avoid it by internal relocation and whether it would be unreasonable or too harsh to expect him to do so.”

26.  Thus having so stated that it was necessary to hear the Applicant’s evidence to resolve all these issues of his claim, and having received an explanation from him for his failure to attend the scheduled oral hearing, it is in my view reasonably arguable that the Adjudicator should have given the Applicant the benefit of the doubt for his non-attendance, and that high standards of fairness requires that he be given another opportunity to be heard as to his claim and appeal, and hence the Adjudicator’s decision not to re-fix another oral hearing was in the circumstances Wednesbury unreasonable or irrational.  In the premises, I agree these grounds of the Applicant are reasonably arguable for his intended challenge.      

Ground (1): Erred in law and/or acted unfairly or irrationality by failing to give substantial consideration of the Applicant’s claim

27.  For this complaint Mr Parker submits that the Board erred by refusing the Applicant’s appeal on the basis that he failed to attend the oral hearing without following the proper approach set out in Ghotiya supra, of which the Adjudicator cited and stated that it would follow but actually failed to do so in his decision to dismiss the appeal.

28.  Notwithstanding the absence of the Applicant to attend the scheduled oral hearing so as to give further evidence for his appeal, and having decided not to re-fix the hearing, Mr Parker submits that the Board was still required to go on to determine the claim on its merits based on all the relevant information and materials available before it, and to make findings on issues of credibility, state protection and/or internal relocation, as well as the reasons therefor, and that such requirement is fundamental, but which the Board simply failed to do any.

29.  With or without an oral hearing, it is clearly stated in the Petition Guide that the Adjudicator in determining whether a claim is substantiated and hence non-refoulement protection is to be granted to the applicant must take into account all relevant considerations of the individual circumstances of each case, including relevant COI and whether there is any region within the Risk State in which the applicant would not be subjected to a risk under any applicable grounds (other than torture risk) [21.1].

30.  In UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (reissued February 2019) which provides guidance to Contracting States in conducting refugee status determination including the needs for the applicant to establish the relevant facts of his case and for the decision-maker to then assess the validity of the evidence and the credibility of his claim, as it so stated:

“195. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.

196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof.  In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”   

31.  In approving these guidelines in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, the Court of Final Appeal held that high standards of fairness require that an applicant should be given every reasonable opportunity to establish his claim, and in determining the validity of such claim, the decision-maker should consider all the relevant matters, as Li CJ stated as follows:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. The question as to what weight the Secretary may properly place on UNHCR’s decision in relation to refugee status will be addressed later. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.

“52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is 5here any evidence as to the credibility of the potential deportee?

…

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention. And the guidance provided by UNHCR in its handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned …

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the apst as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”    

32.  In Ghotiya, Campbell-Moffat J accordingly rejected the Board’s reason for dismissing the appeal because the applicant failed to appear to prove his claim, and held as follows:

“8. The Adjudicator determined that an oral hearing was required. The Applicant was notified of the date of that hearing but failed to attend. A further notice was sent to the Applicant on 19 July 2017, in which he was required to provide an explanation for his non-attendance. That notice stated that the Adjudicator would proceed to consider his appeal in his absence. The Applicant failed to reply to the letter of 19 July 2017, no doubt because he believed his appeal was to be considered in any event, whether he appeared or not. Unfortunately, this did not occur. The Adjudicator did not consider the appeal on the papers. He took the view that it was for the Applicant to appear in order to establish his case to the requisite standard. He had not done so and therefore the Adjudicator dismissed the appeal without more. It was open to the Adjudicator to treat the appeal as a rehearing on the papers. He could have considered the law and key legal principles including, but not limited to, the burden and standard of proof. It may be, that in deciding an oral hearing was necessary, the Adjudicator had taken a preliminary view that the Applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to India but the applicant was entitled to a formal consideration of those issues regardless of his attendance, which was not done in this case.”

33.  Her Ladyship then proceeded to find it reasonably arguable that the Adjudicator may have acted unreasonably and unfairly in giving the applicant an indication that his appeal would be considered on the papers but then failed to do so.

34.  As noted above, the Adjudicator in the present case stated that he would follow the same approach to consider the Applicant’s appeal in his absence on the papers, which included those evidence and materials earlier presented by the Applicant in his TCF and SCF to the Director and which were clearly available before the Board as mentioned by the Adjudicator in [34] of the decision, but which the Adjudicator ultimately failed to do so.

35.  In the circumstances, and for the reasons given, it is in my view reasonably arguable that the Adjudicator erred in law in failing to properly consider the Applicant’s claim on the papers.      

Ground (5): Failure to give adequate reason for refusing the Applicant’s appeal

36.  As already noted above, it is also the Applicant’s complaint that the Board failed to give adequate reasons or at all for rejecting his appeal, as Mr Parker submits that at no point in the Board’s decision did the Adjudicator explain why, just because the Applicant had not given oral evidence before the Board, there was “no evidence” to support his claim, nor why the Board was unable to decide whether the Applicant faced any of the risk claimed on the basis of the documents available before him, nor was it clear why the Board’s alleged inability to decide the substantive issues of the non-refoulement claim would lead to the automatic dismissal of the Applicant’s appeal.   

37.  In Schedule 1A to Section 37ZU of the Immigration Ordinance which set out the practice and procedure of the Appeal Board, it is stated in s 23(3) that the Board must give its decision with reasons in writing, which requirement is also incorporated in the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board (5^th edition 12 September 2016) under s 18.3, and as also noted above in Prabakar, high standards of fairness require that in rejecting a claim, the Board should give sufficient reasons so as to enable the claimant to consider the possibilities of administrative review and judicial review.

38.  In Re Hidayah [2018] HKCA 595,  where the claimant was similarly absent from the scheduled hearing before the Board, and the Adjudicator dismissed the appeal on the ground that in the absence of the claimant the Board was unable to determine the credibility of his assertions and whether there was a real risk or substantial grounds for believing that she would suffer the harm she claimed to fear, in reversing the subsequent decision of the Court of First Instance, the Court of Appeal allowed the appeal and granted leave to apply for judicial review, as Chu JA in giving the judgment for the Court held that the Board had failed to give sufficient reasons for dismissing the appeal:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and , in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”    

39.  In the present case. it is in my view also reasonably arguable that the Board failed to explain adequately or at all why in the absence of the Applicant in his appeal hearing that it was unable to decide whether he faced any of the risks claimed or any of the substantive issues of his non-refoulement claim based on the materials and documents previously submitted by him to the Director and available to the Board in the hearing bundle in dismissing his appeal.        

Ground (6): Erred in law by requiring corroborating evidence for the Applicant to substantiate his non-refoulement claim

40.  For this complaint, Mr Parker submits that the fundamental premise of the Adjudicator’s approach was that the Applicant could not on the papers alone establish his protection claim in that a key plank of this reasoning turns on the Adjudicator’s assertion that the claim could not be accepted because of a lack of “external corroboration for any of the Petitioner’s allegations of fact” or that “there is no evidence to support what he has written in his Torture Claim Form and Supplementary Claim Form ([26] & [34] of the Board’s decision) which Mr Parker submits is an error of law, as it has been well-established that it is not necessarily required for a claimant to corroborate his account for his claim.

41.  As already noted above in the UNHCR Handbook at [196], non-refoulement claimants are recognized to be often unable to support their statements by documentary or other proof given their special situation, while in the UNHCR Note on the Burden and Statement of Proof in Refugee Claims (16 December 1998), it is also accepted that they should not be required to produce all necessary evidence:

“10. As regards supportive evidence, where there is corroborative evidence supporting the statements of the applicant, this would reinforce the veracity of the statements made. On the other hand, given the special situation of asylum seekers, they should not be required to produce all necessary evidence. In particular, it should be recognized that, often, asylum-seekers would have fled without their personal documents. Failure to produce documentary evidence to substantiate oral statements should, therefore, not prevent the claim from being accepted if such statements are consistent with known facts and the general credibility of the applicant is good.”

42.  In SS (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 233, Laws LJ stated that corroboration is not required as a matter of law, as His Lordship explained why permission to appeal should be given to the applicant at §9:

“While, as I have said, I do not consider that the senior immigration judge was applying a rule of evidence that does not exist, his approach does suggest a possible view on his part that he will not accept the applicant’s account save where it is corroborated yet no reason is given for such a view. It may be that the applicant will have a large hill to climb and I have considerable misgiving as to whether the case is fit for appeal but given the anxious scrutiny which tribunals and courts are enjoined to apply to these cases I have concluded that the applicant should have permission.”

43.  In the present case, for the same reasons I agree that it is reasonably arguable that the Board erred in law in discounting or disregarding the Applicant’s account because it was not corroborated by other evidence.      

Ground (7): Erred in law and/or procedurally unfairness in assessing the Applicant’s credibility

44.  Mr Parker submits that the Adjudicator’s observations as to the Applicant’s credibility, on which he ultimately never reached any final determination, are replete with errors of law and analysis.

45.  First, in stating that the Applicant was “telling a common but unsupported story of violence and threats made many years ago” ([30] of Board’s decision), Mr Parker submits that the Board failed to provide any reason for considering the Applicant’s account to be unbelievable despite the documents and COI previously submitted by the Applicant to the Director and available before the Board, a bald assertion without any or adequate explanation which Mr Parker submits to have fallen short of the high standards of fairness requiring the Board to give adequate reasons for its findings such that a claimant would understand why his evidence or his claim was not accepted.

46.  Second, Mr Parker submits that the Board did not make any findings on the substantive facts of the Applicant’s case or consider the relevant COI, and that it is unclear on what basis that the Adjudicator concluded that the Applicant’s story was “unsupported” or incredible, or that the risks he claims to face have dissipated due to passage of time, and hence the Board’s analysis is irrational for lack of an evidential basis, and for failing to consider all the evidence together.

47.  Thirdly, Mr Parker further submits, in doubting the Applicant’s credibility, the Adjudicator placed undue emphasis on peripheral matters, such as the Applicant’s inability to attend his screening interview before the Director, his failure to complete one of the questionnaires raised by the Director, and his supposed failure to seek non-refoulement protection as early as practicable, and as the Adjudicator never considered or reached any finding on the substance of the Applicant’s risk claim, such peripheral matters were of little consequence, and as such the Board had misdirected itself in law and/or that its credibility analysis was irrational and/or procedurally unfair.

48.  In assessing the  credibility of a claim for international protection, it is stipulated by UNHCR in its Asylum Procedures Directive (“APD”) that Member States are required to ensure that the applications be examined and decisions taken objectively and impartially, and that such requirement of objectivity and impartiality applies throughout the procedure, including the processes of both gathering and assessing evidence, and it also applies to the examination of all applications regardless of the applicant’s identity, background, or circumstances: Article 8(2)(a) of APD.

49.  This requirement is in fact reflected in the national legislation and guidance of EU Member States, such as in the UK guidance, UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012 which stated at p.12:

“[a]ssessing the credibility of a claim is not about making negative credibility findings and focusing on refusal. It is an objective assessment of the material facts that go to the core of the claim […]. The guidance adds: ‘It should be a neutral assessment of the material facts […] in which subjectivity should be kept to a minimum.”

50.  In UNHCR Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013, the importance of such requirement is further elaborated at pp.38-39:

“The requirement of impartiality and objectivity applies regardless of the circumstances of the case. As stated in the UNHCR Handbook, the decision-maker must conduct the fact-finding process “in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an ‘underserving case’.”

It is, therefore, critical that decision-makers do not prejudge credibility and do not approach the task with skepticism or a ‘refusal mind-set’. This may prejudice and distort the process of both gathering information and assessing the applicant’s statements and other evidence, thereby violating the requirement of impartiality.

The examiner(s) must, therefore, start out with maintaining and being seen to maintain an open mind throughout the procedure. This is particularly salient when only one case worker handles an application, and none or only limited review or quality checks are carried out on decisions to reject claims for protection, in particular the basis for the findings of fact upon which decisions are made. In some Member States, while decisions to grant international protection may require peer review by a senior colleague, decisions to reject an application may be taken by the one case worker without any peer review.

It should also be recognized that many asylum adjudicators work in a social and political context concerned with preventing irregular immigration and ensuring that the asylum system is not abused by persons fabricating evidence. Some determining authorities are located in government departments that have the objective to prevent irregular immigration. This may influence the mind-set of decision-makers and make it more challenging to implement an institutional culture in asylum procedures that is adequately human rights and protection-oriented.

It is, therefore, vital that decision-makers recall that their task is to uphold fundamental human rights and identify applicants who qualify for international protection. Furthermore, it is crucial that determining authorities take appropriate steps, as necessary, to ensure an institutional mind-set that is protection-oriented and an institutional culture that is ‘protection-sensitive’.

In addition, examiners need to be aware that their perception of the applicant and his or her application should not be negatively influenced by issues that are not pertinent to the material facts of the application. Elsewhere in this report, UNHCR stresses that a factor such as the applicant’s demeanour is not a reliable indicator of credibility. A determination of credibility by reference to demeanour has a subjective basis that will inevitably reflect the values, views, experience, prejudice, and cultural norms of the decision-maker and is, therefore, at odds with the requirement of objectivity and impartiality.

Examiners should also be aware of the subliminal influence of factors that are pertinent to the material facts of the application. For example, that an applicant has told a lie(s), concealed a fact(s) or submitted fraudulent documentation is not necessarily decisive in the assessment of credibility of the applicant’s statements on material elements in the claim. A lie or submission of false documentary or other evidence may be re-evaluated once all the circumstances of the case are known.

The credibility assessment should be based on the available relevant evidence and not on the decision-maker’s intuition or gut feeling. Speculative argument that fails to rely on objective and reliable sources of information and that reflects the decision-maker’s own theory about how the applicant or others could or should have acted, or about how certain events could or should have unfolded, violates the principle of objectivity. As expressed in Australian guidance: “What is capable of being believed is not to be determined according to the Member’s subjective believe or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.”  

Assessing credibility, therefore requires decision-makers not just to assess the statements and other evidence applicants present, but also to be aware of the extent to which their own emotional and physical state, values, views, prejudice, and life experiences may influence the objectivity and partiality of their decision-making. This will enable them to minimize subjectivity and partiality.” 

51.  In the present case, given the Adjudicator’s comments and observations as to the Applicant’s credibility as noted above but without making any actual or substantive findings and determination of his claim, it is in my view also reasonably arguable that the Adjudicator failed to assess the credibility of the Applicant’s claim properly and with the required objectivity and impartiality.     

Conclusion     

52.  In the premises, and for all the reasons given, I am of the view that these grounds of the Applicant as noted above are reasonably arguable for his intended challenge of the Board’s decision and with prospect of success, thus meeting the threshold for leave to be granted to apply for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
53.  Accordingly, I grant leave for the Applicant to do so on his proposed grounds, and direct that he shall file the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, with costs to be in the cause and on Legal Aid Regulations.

 
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1